Davis v. Com.

Decision Date26 August 2004
Docket NumberNo. 2002-SC-1092-MR.,2002-SC-1092-MR.
Citation147 S.W.3d 709
PartiesGary Wayne DAVIS, Appellant, v. COMMONWEALTH OF KENTUCKY Appellee.
CourtUnited States State Supreme Court — District of Kentucky
Opinion of the Court by Justice COOPER.

James Edwin Cox was shot and killed at approximately 6:30 p.m. on November 13, 1998, while standing in front of his residence on Thomas Grove Road in Jefferson County, Kentucky. Immediately prior to the murder, Cox was talking to his brother on his cellular telephone. During that conversation, Cox told his brother that a vehicle was driving slowly up and down his street, and that he was going to see what the driver wanted.1 Cox then terminated the telephone call. Shortly thereafter, Cox was found dead with seven gunshot wounds to the head, back, and buttocks. At the time of his murder, Christina Levy, ex-wife of Appellant, Gary Wayne Davis, was residing with Cox. Levy was in North Carolina when the murder occurred.

A Jefferson Circuit Court jury subsequently convicted Appellant of murdering Cox, KRS 507.020, and of tampering with physical evidence, KRS 524.100, by attempting to dispose of Cox's body. The trial court sentenced Appellant to concurrent prison terms of fifty years for murder and five years for tampering with physical evidence. He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), contending that the trial court erred by: (1) admitting irrelevant and prejudicial testimony about his relationship with his ex-wife; (2) admitting testimony about an unidentified bullet found in a vehicle leased to him at the time of the murder; (3) admitting unreliable scientific evidence about a tire track; (4) admitting evidence for which a proper chain of custody was not established; (5) denying Appellant's motion for a mistrial after the son of a juror was murdered during the course of the trial; and (6) refusing to direct a verdict of acquittal. Finding no reversible error, we affirm.

* * * * * *

Robert Rice, Cox's next-door neighbor, partially witnessed the murder. He heard a loud noise and went to a window to see what had happened. He saw a thin person entering a pickup truck in Cox's driveway. The person backed the truck out of the driveway and parked it on the grass in front of the fence separating the Rice and Cox properties. Rice noticed Cox lying on the grass in front of the truck propped up on his elbow with his head hanging down. The person exited the truck and shot Cox in the head, causing him to fall completely to the ground. The shooter next shot Cox in the buttocks. Rice heard a total of four to five shots, saw the truck back up toward the body, and then heard the truck's tailgate drop. Because he later observed the body lying in a different position than when he had seen it from the window, Rice surmised that the shooter had unsuccessfully attempted to load the body into the pickup truck. Rice could not determine with certainty the race or gender of the shooter, or the color, make, or model of the truck, except that the truck was dark in color.

The police suspected Appellant of Cox's murder because of Cox's relationship with Levy, who had divorced Appellant seven months before the murder. The police interviewed Appellant three times regarding his relationship with Levy and his activities on the day of the murder. Appellant did not testify at trial. However, the officers who had interviewed him recounted his alibi, and one of the statements that had been audiotaped was played for the jury. In his statements to police, Appellant described his activities on November 13, 1998, as follows:

Sometime between 5:00 and 6:00 p.m., he took his vehicle to a nearby Michel Tires store to purchase new tires. Because the tire store needed to keep his car overnight, he rented a dark blue extended-cab pickup truck from Enterprise Rent-A-Car. Appellant claimed that he planned to use the truck for weekend travel with friends. He left Enterprise at about 6:00 p.m., returned home to get some exercise gear, and arrived at the gym between 6:30 and 7:00 p.m. He left the gym at approximately 8:00 p.m. Upon remembering that his sister's birthday party was that weekend, he decided to cancel his travel plans, and returned the rental truck to Enterprise. After returning home again, he drove to his place of employment, Caesar's casino in Indiana, where he worked from 8:45 p.m. until approximately 5:00 a.m. the next morning.

Documentation from Enterprise and Michel Tires indicated that Appellant rented the truck at 4:23 p.m. (not 6:00 p.m.), and took his car to Michel Tires at 5:00 p.m. A former Michel Tires employee testified that the tire store routinely finished tire-changing jobs in about forty-five minutes, and that the work order indicated a probable finishing time of 6:00 p.m. Further, the Enterprise employee testified that Enterprise normally closed for business at 7:00 p.m. and that Appellant returned the truck at approximately 7:15 p.m., not 8:00 p.m. Enterprise records showed that Appellant had driven the rental truck a total of 34 miles. Commonwealth's detectives who drove the route that Appellant described to police (from Enterprise to his apartment, to the gym, then back to Enterprise), measured the total distance at 11.9 miles; however, when combined with an additional 22 miles to and from the murder scene, the hypothetical route totaled 33.9 miles.

The Commonwealth also cast doubt on Appellant's claimed innocence by focusing on his behavior in the days and weeks following Cox's murder. Allen Hall, the Enterprise employee who rented the truck to Appellant, testified that he took an imprint of Appellant's credit card, intending to charge the rental fee to Appellant's credit card company the next day. Appellant, however, called Hall the next morning and informed him that he had decided to pay in cash. Later that day, Appellant went to Enterprise, paid the rental fee in cash, and had the credit transaction voided. Appellant returned to Enterprise a few weeks later and attempted to "refresh" Hall's memory regarding the following matters: (1) that he had first requested a black Jeep Cherokee automobile instead of a truck; 2 (2) that he had wanted to pay in cash from the beginning; (3) that he had parked his company van at a lot across the street from the rental agency and placed a for-sale sign on it; and (4) that he returned the rental truck on the way home from the gym. Appellant informed Hall that it was extremely important for him to remember what he had just been told "for reasons that he couldn't get into." Before leaving, he gave Hall some coupons for use at Caesar's casino. Almost immediately after Appellant left, police officers arrived at Enterprise to question Hall about Appellant's rental transaction.

I. OTHER CRIMES, WRONGS OR ACTS.
A. Motion in limine.

The Commonwealth's theory was that Appellant's motive for killing Cox was his obsession with Christina Levy and jealousy of Cox's sexual relationship with her. In order to determine prior to trial whether it could prove this theory by evidence of specific instances of conduct, the Commonwealth served "Notice pursuant to KRE 404(c)" of its intent to introduce at trial evidence of Appellant's almost life-long obsession with Levy and jealousy of Levy's relationships with other men, and a motion for an in limine ruling that such evidence was admissible. Because Appellant claims that the admission of this evidence was error and the Commonwealth claims that Appellant did not preserve the issue for appellate review, we repeat verbatim the evidence recited in the Commonwealth's pretrial notice and motion.

Ms. Levy and the defendant met in the 6th grade. Although they did not know each other well, the defendant admitted to Ms. Levy years later that he used to follow her home, unbeknownst to her, in the 6th grade. Ms. Levy and the defendant began dating during Ms. Levy's sophomore year at the University of Kentucky. After their relationship became sexual, the defendant became very possessive of Ms. Levy. In the Spring of 1986, Ms. Levy ended the relationship with the defendant. He began to shake and cry. He begged her to stay with him. He said he would do anything to remain with her. Shortly afterward, the defendant searched the crowd during the Derby Festival to find Ms. Levy's father. He proceeded to tell Mr. Levy that he was an unfit father and a bad example for Ms. Levy.

In the Summer of 1986, the defendant began waiting for Ms. Levy in the parking lot of her apartment complex during all hours of the night. He would blow his horn or yell at Ms. Levy when he saw her. He would ask her to talk with him or just sit in his car and listen to a song with him. On one occasion, Ms. Levy and a friend told the defendant they were having a girls night out. The defendant showed up at the bar. After one of Ms. Levy's friends called the defendant a stalker, the defendant left a box of personal items at Ms. Levy's door. In the Fall of 1986, the defendant apologized to Ms. Levy for his bizarre behavior stating that he just wanted to be with Ms. Levy.

In the Spring of 1987, Ms. Levy and the defendant resumed their friendship. However, the defendant remained romantically interested in Ms. Levy. He asked her not to speak about her boyfriend, he attempted to hold her hand, and took other actions which clearly demonstrated to Ms. Levy that the defendant was still interested in a romantic relationship. On one occasion, the defendant called Ms. Levy to study. Ms. Levy told the defendant that she had guests. At 6:00 a.m. the following morning, the defendant knocked on her door looking disheveled and acting agitated. He disgustingly [sic] laughed...

To continue reading

Request your trial
75 cases
  • Lanham v. Com.
    • United States
    • United States State Supreme Court — District of Kentucky
    • 25 Agosto 2005
    ... ... One claiming error may not rely on a broad ruling and thereafter fail to object specifically to the matter complained of. 10 ...         Our other cases have similarly limited KRE 103(d). For example, in Davis v. Commonwealth, 11 we noted that a motion in limine challenging "the presentation of any evidence supporting the Commonwealth's theory of the case without specifying any other reason why a particular fact should be suppressed" 12 was insufficient to preserve objection to the introduction of ... ...
  • Harry v. Commonwealth of Ky.
    • United States
    • United States State Supreme Court — District of Kentucky
    • 27 Octubre 2011
    ...v. Commonwealth, 171 S.W.3d 14 (Ky.2005), overruling in part Tucker v. Commonwealth, 916 S.W.2d 181, 183 (Ky.1996); Davis v. Commonwealth, 147 S.W.3d 709, 722–23 (Ky.2004). In this instance, although the motion, in its preamble, addressed the exclusion of both videotaped statements and the ......
  • Meece v. Commonwealth
    • United States
    • United States State Supreme Court — District of Kentucky
    • 16 Junio 2011
    ...Commonwealth, 171 S.W.3d 14 (Ky. 2005), overruling in part Tucker v. Commonwealth, 916 S.W.2d 181, 183 (Ky. 1996); Davis v. Commonwealth, 147 S.W.3d 709, 722-23 (Ky. 2004). In this instance, although the motion, in its preamble, addressed the exclusion of both videotaped statements and the ......
  • Ernst v. Com., No. 2002-SC-1088-MR.
    • United States
    • United States State Supreme Court — District of Kentucky
    • 21 Abril 2005
    ...Only "a timely objection or motion to strike," KRE 103(a)(1), a continuing objection permitted by the trial court, Davis v. Commonwealth, 147 S.W.3d 709, 721-22 (Ky.2004), or a pretrial motion in limine, KRE 103(d), will preserve an error in the admission of evidence. After the Commonwealth......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT